James Morton recalls the days when getting any counsel at all – let alone competent and reliable counsel – could, for some cases, be a tricky business

In the 1960s, a criminal practice was something of a cottage industry in London – the Old Bailey had six, then eight, courtrooms. Later, the four west courts opposite the main building were opened for those defendants not in custody. These courts were minded by ushers in blue uniforms with scarlet chevrons who, when all was going smoothly, would stand outside the building in the sun. Everyone knew everyone else. ‘No use you hurrying, Mr H.’ one of them remarked to a portly, middle-aged, middle-European solicitor who was panting down from High Holborn. ’Your counsel left for Sotheby’s in a taxi half an hour ago.’ That was one of the dangers of using Billy Rees-Davies. You might find him in court cross-examining on your client’s behalf and, then again, you might not.


Billy had a very Victorian attitude to clients, whom he would rarely see in conference, and definitely would not if they were in Brixton. As for mitigation, it was often handed over to a younger member of chambers who might or might not know anything about the case.


In a curious way, this had some merit. A Billy defence was often an all-out attack on the police who, rather than his client, were the guilty ones, and he argued that if that went wrong it looked a great deal better if someone took over the plea rather than have him make a volte-face.


It was a time when the old fashioned Marshall Hall style of flamboyant advocacy had not completely gone out of fashion. Some counsel made a speciality of the grandstand defence, taking on not only police and judge but also shorthand writers, ushers and, if he was in the wrong place at the wrong time, the court electrician.


Others picked up clever points. Neville Sarony, the son of the great comedian, following one barnstorming speech by counsel for a co-accused, began his own speech to the jury: ‘My father, who as you know used to appear in music hall, always told me that the seal act was the hardest act to follow.’


Even though there were far fewer courts – three or four at Middlesex and the same at Inner London (no Knightsbridge, no Southwark) – it was still difficult to get decent counsel for the run-of-the-mill cases – and sometimes for the serious ones as well. I recall telephoning the clerk of the man who probably then had the biggest criminal practice at the bar, to ask whether he would take a murder defence for me. I had instructed him before.


‘Of course. What sort of brief fee are we talking about?’


‘It’s legal aid,’ I replied.


‘Oh, I’m afraid not. Mr X is far too busy. Everyone thinks he ought to be taking their legal aid work.’


This was the much-vaunted cab rank rule in operation. If a clerk did not want his man to take a case there were innumerable ways in which he could wriggle out of it. He might be part-heard in Birmingham. ‘Just warning you, he may not be back.’ The last thing you wanted was to have a ‘six o’clock shadow’, one of those barristers whose living was on last-minute returns.


Cases appeared in a warned list usually within a fortnight of committal. This meant the case could be heard on any day within the next fortnight – and it was the devil’s own job to get them out of it. With the speed at which cases turned over, it was often a problem to get to see a client if he was in custody, particularly at a remand centre.


Visiting hours were strictly limited – nothing after 5pm, unless it was a conference with counsel. Applications for an adjournment usually had to be made to a judge. I remember having a murder case, the brief in which was returned. I telephoned the clerks to more than 30 silks but the only one who was available was a man whose false teeth clacked when he spoke. At least my application to get it out of the list was successful.


If solicitors were not ready, then judges could make orders relating to their costs and it was a six o’clock shadow who had me in front of one in a middle-of-the-road case. Things had gone very nicely. The client had a conference with his counsel. The line of his defence was agreed and then the evening before the trial the brief was returned.


A frantic search produced a substitute who overnight decided a handwriting expert was necessary. The client, seeing an adjournment and weeks more on bail, naturally went along with it. ‘Why hasn’t this been done before?’ the judge wanted to know. The answer was because there was no need and that it was a flight of fancy on behalf of counsel. After the trial, I was summoned to explain why I was not to pay the wasted costs. I was furious and was going to tell the judge, whom I saw in his room, just whose responsibility it all was.


‘It is entirely my fault,’ I began. ‘I…’ And before I could say ‘…should never have instructed such an incompetent counsel,’ the judge stopped me.


‘That’s enough. In all my experience I’ve never heard a solicitor be so frank. They always try and blame somebody else, usually counsel. Let’s say no more. While you’re here, would you like a cup of coffee?’


James Morton is a former criminal law specialist solicitor and now a freelance journalist